Firing Fearlessly

Firing Fearlessly

Telling an employee not to report for work tomorrow is a nerve-wracking task, no matter how many reasons you have for terminating employment. Employers often feel apprehension, dread or even outright panic as the final confrontation approaches. Whether a terminated employee is tearful, desperate or furious, it’s up to you to keep the situation calm so both of you can move on.

As practice owners know, it can be risky to terminate an employee without due diligence. To avoid lowering morale and giving rise to accusations of wrongful termination, employers and managers must take care in reviewing employee performance and documenting problems before taking the final step of termination. Following is a simple breakdown of what you need to know—and do—to properly and tactfully fire a problem employee.

At-Will Status

Many employers think that if they claim “at-will” status for their employees—by which you can fire someone with or without reason or notice—and document that in their employee handbooks, they have all the protection needed to terminate employment. While this is helpful, it isn’t a bulletproof shield.

There are a host of reasons for which you cannot terminate employment, and you need to be familiar with all of them.

First, you cannot fire someone because they are in a protected class, which includes race, religion, ethnic origin, mental or physical disability, pregnancy, age, gender, sexual orientation, marital status and veteran status. Additionally, employers cannot fire an employee in retaliation for participating in a protected activity. Protected activities include discussion of wages, complaints of workplace harassment, filing a workers’ compensation claim, reporting an OSHA violation and similar activities.

To complicate matters, nearly every employee falls into one protected class or another, or has participated in some protected activity. In 99% of cases, this has nothing whatsoever to do with why an underperforming or poorly suited employee is fired. But it is important for employers to make sure their reason for termination is not related to one of these issues.

Let’s be clear: You do not have to keep a terrible employee on the team forever because she’s pregnant or because he hurt himself at work. However, even as an at-will employer, you want to exercise caution whenever you think you might need to terminate an employee who falls under one or more of these categories. Consult with your HR expert as soon as termination starts to make sure you are doing everything you can to mitigate the extra risk. It should be crystal clear to any observer (or investigating agent) that any disciplinary action or termination was not retaliatory or discriminatory.

Documentation Is Your Friend

In order to protect your practice against wrongful termination suits and unemployment claims, it is safest to support every termination with a paper trail. Keep your employees’ personnel files in order and up to date at all times. If the employee is engaging in problematic behavior—such as missing work, perpetual tardiness or creating a hostile work environment—document your (sometimes repeated) attempts to coach the employee as well as all requests you made to the employee to change their behavior. Each note should be dated, legible, specific, unbiased, supported and signed by the employer. During any written corrective coachings, the employee should also sign the notice “acknowledging” the conversation and requested behavior or performance improvements.

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When the time comes to terminate, state your legal reason and provide a written termination letter to the employee, which should include: the specific (legal) reason for termination of employment; any company-sponsored health plan details, such as COBRA continuation; and a reminder of their ongoing responsibility to maintain confidentiality of patient/employee Protected Health Information and any other secure information (not involving working conditions). This precludes the likelihood that an ex-employee with a grudge will later try to create an illegal reason for the firing and file a lawsuit. Rarely do terminations come as a surprise—either to the business owner or the employee.

The benefits of documentation do not preclude you from terminating an employee on the spot if they do something egregiously wrong in your practice or with a patient. For instance, should you discover that an employee had a physical altercation with a fellow employee or patient, or allowed a family member or friend to steal items from your business after hours, this would be grounds for immediate dismissal. But your reasoning should be clear and well documented, and an employee handbook containing up-to-date, legally compliant employee policies and a professionally written at-will disclaimer should back up your actions.

The Final Meeting

While terminating the employment of a staff member is never comfortable, there are some steps you can take to help make the final interaction go as smoothly as possible. Choose a private setting and arrange to have a witness present. A neutral third-party witness is best, if available. If not, you definitely want the physician-owner and a manager or high-level employee in the room. Do not fire an employee over the phone.

The termination should take place at the beginning or end of the day, when no patients are due to arrive. If the employee was also your patient, be prepared to address whether you will cease to provide care. Make sure you know your state’s particular laws, so you do not inadvertently create a patient abandonment issue.

At the termination meeting, steer the conversation with precision and work to keep it under 10 minutes long. Tell the employee, in as few words as possible, why you are terminating employment. Hand them the termination letter and materials described above, including an exit interview form, and their final paycheck and pay stub. Pay out all amounts owed. Each state has different laws regarding final paychecks, but it is never a good idea to withhold them, not even to ensure the return of company property. Some states also require earned/accrued vacation payout upon termination.

Listen to the employee as they vent or comment, but don’t let them go on too long, and make it clear you consider the matter closed. If they continue to argue or cry, respond by saying, “I am sorry you feel this way. My decision is final.”

Gently—but with certainty—ask the employee to clean out their desk and turn in company property. Then escort them out of the building. Be sure to make note of any accusations or threats.

To hasten matters and avoid future problems, follow these guidelines:

  • Do not make comments such as, “You have done a good job up to this point, but…” or “It’s not your fault.”
  • Do not allow yourself to get caught up emotionally.
  • Do not argue, back-pedal or defend your decision.
  • Do not say you will reconsider.
  • Do not lay your hands on the employee.
  • Do not make any statements based on opinion. Only the facts will support you in the future.
  • Do not give the employee a letter of recommendation to soften the blow. It can be used against you.
  • Do not hesitate to call the police or inform the employee that you are considering it if you feel you are in danger.
  • Lock down the employee’s access to your computer system immediately (or even before you meet with them). The last thing you want is an irate ex-employee trying to delete appointments on their way out the door.

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The Exit Interview

Whenever an employee leaves your practice, the exit interview form is your official attempt to get their departing viewpoint. This is especially important in the case of terminations. Although the termination meeting should be conducted in person, the exit interview form is best filled out remotely. Give it to the departing employee with their final paycheck. (If for some reason you can’t do this, send it in the mail.) Include a self-addressed, stamped envelope and ask them to return it as soon as they can.

If the employee is angry at being fired and returns four pages of incoherent ranting about how much they hate your practice and you, there’s no reason to worry—you’ve just collected documentation of their mindset at the time of termination. If they try to sue you for some reason months later with a fabricated story, you stand a much better chance in front of any judge or arbitrator with that in hand.

Alternatively, if an exit interview form contains a bad or surprising story (an allegation of harassment from a coworker, for example), then it’s very important that you make a documented attempt to collect this information and investigate.

Of course, many ex-employees will simply ignore your request and make no response at all. That’s also fine—it’s important that you document your attempt to gather any pertinent information as their employment concludes.

Terminating employees with minimal drama and risk requires preparation and practice. Specific situations will often have their own complications, so it can be beneficial to speak with a qualified HR professional before you begin the termination process. It’s better to be safe (and prepared) than sorry.

Paul Edwards is the CEO and co-founder of CEDR HR Solutions, a provider of individually customized employee handbooks and HR services for healthcare employers of all specialties. He is an HR expert with 25 years of management experience and the author of the blog HR Base Camp. Contact him at 602.476.1418, [email protected].

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